The constitutionality of criminalising homosexuality in Nigeria

The Director of Strategic Alliance for Minority Equality Nigeria, Gbenga Asawaj, presents the argument that contrary to popular opinion based on notions of morality, the Nigerian constitution did not make any provision for “banning homosexuality”

The Nigerian state is founded on the ideal of freedom, equality and justice. The right to freedom from discrimination is expressly granted every Nigerian by the constitution in S.42 (1) (a). The section provides that “A CITIZEN OF NIGERIA OF A PARTICULAR COMMUNITY, ETHNIC GROUP, PLACE OF ORIGIN, SEX, RELIGION OR POLITICAL OPINION SHALL NOT, BY REASON ONLY THAT HE IS SUCH A PERSON — A) BE SUBJECTED EITHER EXPRESSLY BY OR IN THE PRACTICAL APPLICATION OF ANY LAW IN FORCE IN NIGERIA OR ANY EXECUTIVE OR ADMINISTRATIVE ACTION OF THE GOVERNMENT,TO DISABILITIES OR RESTRICTIONS TO WHICH CITIZEN OF OTHER COMMUNITIES, ETHNIC GROUPS, PLACES OF ORIGIN, SEX, RELIGIOUS OR POLITICAL OPINIONS ARE NOT MADE SUBJECT TO.”

Despite the statement credited to the past minister of foreign affairs at a summit abroad a few years ago, claiming that there are few gay people in Nigeria, it might come as a shock to him that there is indeed a gay community in Nigeria and this community has in fact grown substantially over the years. A community is defined by BLACK’S LAW DICTIONARY (NINTH EDITION) to mean “A SOCIETY OR GROUP OF PEOPLE WITH SIMILAR RIGHTS OR INTERESTS.”

The provisions of the constitution cited above are very important to every Nigerian citizen. The framers of the country’s constitution realized this fact, which is why section 42 of the 1999, constitution is not part of those sections of the constitution that can be restricted upon or derogated as is provided for by section 45………….

This argument must be made because the Nigerian legislature will always rely upon section 45 of the constitution in making laws that tend to derogate the fundamental rights of citizens. Section 45 indeed allows laws, which are reasonably justifiable, in the interest of Defence, public safety, public order, public morality, public health or for the purpose of protecting the rights and freedom of other persons. The section only covers sections 37, 38, 39, 40 and 41 of the constitution.

It is my belief that in the light of what has been written above, provisions of the CRIMINAL CODE 2004, cap 28, which specifically target same sex relationships are indeed discriminatory against the gay community.

Section 217, of the criminal code act, is inconsistent with section 42 of the constitution. The constitution is “the barometer on which the constitutionality or otherwise of a statute is measured. Where a statute is inconsistent or in conflict with any provisions of the constitution, the provision of the statute will be null and void. This is essentially the language of section1 (3) of the constitution,” per justice Niki Tobi (j.s.c) in A.G LAGOS STATE V. A.G FEDERATION (2003)12NWLR (PT.833)1, SC, PAGE 244, PARAGRAPHS A-D.

The time has come for the country to see the truth about most of these laws, which have been relied upon to destroy the reputations of many people in our society. These laws are being championed by the sentiments of fanatical religious leaders and their fundamental followers. The argument about law and morality has been going on for years. These religious bigots and hypocrites have succeeded in twisting what they feel is a sin in the eyes of their religion into what they feel the law should be for all. Continue reading…